(dissenting).
I dissent in this case because there was sufficient evidence produced to make a jury question in an action of ejectment and it would have been error for the trial court to direct a verdict for the plaintiffs. Since the question presented here is one of legal cognizance rather than equitable, we are not permitted to undertake an examination of the record with a view to passing on the weight, value and credibility of the testimony. The inquiry must be confined to ascertaining whether competent evidence adduced, together with all permissible legal inferences to be drawn therefrom, when viewed in the light most favorable to the defendants, is insufficient as a matter of law to support their claim of adverse possession to the East half of the disputed alley.
*845Defendants’ evidence is uncontradicted. There is no proof to refute the fact that defendants and their predecessors in title remained, in undisturbed possession of the land for over 15 years. Plaintiffs contend that the testimony is insufficient to show that Ward (defendants’ predecessor) was occupying the land under a “claim of right” in an open, public and visible manner.
The acts of dominion necessary to establish a prescriptive title depend in their nature upon the character of the premises and the physical facts. There is no precise legal yardstick to he uniformly applied in every case. In Herron v. Swarts, Okl., 350 P.2d 314, this Court, quoting from 2 C.J.S. Adverse Possession § 43, p. 557, said:
“ * * * Acts of ownership of such character as openly and publicly to indicate an assumed control or use which is consistent with the character of the premises in question; such acts as would ordinarily be performed by the true owner in appropriating the land and its avails to his own use; the exercise of such acts of ownership and occupancy by claimant as are sufficient to ‘hoist his flag’ and keep it flying over the land; physical facts which openly evince and give notice of an intent to hold the land in hostile dominion, or external and public signs or indications of the possession and intention to possess. * * * ”
It was said in McGrath v. Eichhoff, 187 Okl. 64, 100 P.2d 880, 886, in discussing adverse possession, that:
“The law does not attempt to list all the acts of dominion which may constitute such possession, so that what constitutes adverse possession, like the question of what constitutes negligence, often depends upon the circumstances of the particular case, as measured by the judgment of reasonable men. It has been said that such determination in a given case must largely depend upon ‘the situation of the parties, the size and extent of the land, and the purpose for which it is adapted.’ ”
See also: Farris v. Smallwood, 204 Okl. 123, 227 P.2d 644; Kimble v. Allen, Okl., 298 P.2d 1042; Cox v. Sarkeys, Okl., 304 P.2d 979; Herron v. Swarts, supra.
It is clear that from the above cases, an adverse occupant under a “claim of right” need not do more than is “consistent with the character of the premises and its avails.” He is not required to make any particular improvements. The strip in controversy is urban in character and lies in a residential section. Its use as a lawn would be consistent with the surrounding physical facts and this is precisely what Ward did with it. Even if it be assumed that “a claim of right” may not he predicated on mere mowing of grass, although such be done, without interference and for the requisite number of years, upon unimproved (vacant) narrow strip of urban land situated between two residential homes, it must still be decided that Ward did less than was consistent with the acts of a true owner in appropriating the land to its ordinary use. This cannot be said unless it is held that Ward was under a duty to make upon the strip in controversy the same improvements as he placed upon the West side of the alley. The law does not admit of such a standard. It must be kept in mind that the West side of the alley was closer to Ward’s home. He may have wanted to fill the ditch on that part before proceeding to make identical improvement on the other side. On the other hand, Ward may have intended to merely level the east side of the alley without placing any additional dirt thereon. Although most, if not all the dirt which had been hauled in from elsewhere was used to fill the West ditch, it is equally correct that Ward did some leveling work on the East side of the alley at its street end. When defendants bought their property from Ward, the East ditch was deeper at its South end and there was “not much” difference in level between the East and West ditch ,at its street end. In any event, to say that Ward’s failure to fill in the East ditch in a manner identical to that on the West side is fatal to his “claim of right,” *846is to adopt “comparative standard” based on the acts of an adverse occupant upon property wholly unrelated to the present controversy. It is not for this Court to determine whether under these circumstances Ward failed to “evince intent” of his claim to the East half of the alley. This was a question of fact for the jury and it was answered in favor of the defendants.